University of Michigan Legal Working Paper Series
Working Papers 2003-2010
THE PRISONERS’ (PLEA BARGAIN) DILEMMA
Abstract
How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants. This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants. Absent the plea bargain option, many defendants would not have been charged in the first place. Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.
Subject Area
Criminal Law and Procedure
Recommended Citation
Oren Bar-Gill and Omri Ben-Shahar,
"THE PRISONERS’ (PLEA BARGAIN) DILEMMA"
(July 2007).
University of Michigan Legal Working Paper Series.
Working Papers 2003-2010.
Working Paper 71.
http://law.bepress.com/umichlwps/olin/art71
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